Novel Ways To Revoke A Will
Thursday, July 30th, 2015
Each new Last Will and Testament automatically revokes the old one. But can a Will be revoked without executing a new one? Absolutely, and some ways of revoking a Will may surprise you.
Destruction – A Will is revoked by “burning, cancelling, tearing, or obliterating” it. If a Will is found only partially burnt or partially torn, it can become tricky to decide whether this reflects an intent to revoke or just normal wear and tear. A person can revoke particular parts of a Will merely by crossing them out, but no replacement text can be inserted without going through all the formalities of re-executing the Will (including two witnesses).
Misplacement – If the original Will cannot be found, it is presumed to have been destroyed by the testator and revoked. Even if there is a copy of the Will, the copy is not valid unless either (1) there is evidence to demonstrate that the testator did not revoke the original or (2) all the beneficiaries agree that the copy should be treated as a valid Will.
Marriage AND Children – A spouse has the right to take a portion of the deceased spouse’s estate regardless of what the Will says, but marriage itself does not revoke an earlier Will. It takes a combination of marriage AND the addition of new child to revoke a premarital Will. The addition can be by birth, by adoption or even by legal recognition of a child born before the marriage. But just to make things more confusing, revocation only occurs if the child (or a descendant of the child) outlives the parent with the premarital Will.
Divorce – Divorce revokes a Will, but only with respect to those parts of the Will “relating to” the spouse. The same is true with an annulment. But this rule will not apply if the deceased spouse indicates otherwise in his Will or in the divorce decree.
Even though a Will never goes stale by the mere passage of time, the unexpected ways in which a Will can be revoked are part of the reason why it is a good idea to review your estate plan every 3 years.
